Riley v. Sherwood
| Decision Date | 05 March 1900 |
| Citation | 55 S.W. 877,155 Mo. 37 |
| Parties | RILEY et al., Appellants, v. SHERWOOD et al |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
J. D Johnson for appellants.
The plaintiffs were entitled to a re-trial of the case below, and to produce evidence in addition to that offered at the former trial in support of their petition. Crispen v Hannovan, 86 Mo. 160; Lewis v. Railroad, 59 Mo 495; Railroad v. Brown, 43 Mo. 294; Carson v. Sugget, 34 Mo. 364; State ex rel. v. St. Louis Circuit Court, 41 Mo. 574; State v. Newkirk, 49 Mo. 472. It follows, therefore, that the lower court erred in rendering the judgment now appealed from. To hold otherwise would be to deny to plaintiffs their right of trial by jury guaranteed them by sec. 28, art. 2, of the Constitution of Missouri.
George Robertson also for appellants.
(1) The authority of the appellate court is confined to an examination of the record and may upon that examination first, award a new trial; second, reverse or affirm the judgment; third, give such judgment as the trial court ought to have given as to the appellate court shall seem agreeable to law. Sec. 2304, R. S. 1889. The Supreme Court did not reverse, affirm or give judgment. When a new trial is given that necessarily reverses the judgment and the usual action of the court is to "reverse and remand." The language used in this case we construed to mean the awarding of a new trial in the circuit court. (2) When the judgment is reversed and remanded the court below must proceed to re-try the case in accordance with the law as expressed in the opinion of the appellate court. State ex rel. v. St. Louis Cir. Ct., 41 Mo. 574; State v. Newkirk, 49 Mo. 472. (3) A proceeding to contest a will is an action at law and the parties are entitled to a jury. Garland v. Smith, 127 Mo. 567. It is a question for the jury of will or no will under the direction of the court. Muller v. St. Louis Hos. Ass'n, 5 Mo.App. 396; s. c., 73 Mo. 242. If the court had no power at the first trial to dismiss the jury and establish the will then it could not do so after the remanding of the cause, without again giving the parties an opportunity for a jury. The court's action in proceeding to establish the will without a jury is a denial of plaintiffs' right of trial by jury. Sec. 8888, R. S. 1889, art. 2, sec. 28, Constitution.
W. W. Fry and W. M. Williams for respondents.
(1) The circuit court properly held, that it should look to the entire opinion of the Supreme Court, and not merely to the mandatory words with which it concluded, in determining how to proceed under the mandate. Gamble v. Gibson, 10 Mo.App. 335; West v. Brashear, 14 Pet. 51; Supervisors v. Kennecot, 94 U.S. 498. (2) This was in substance and effect a direction to the lower court to enter a judgment establishing the will, as this court held should have been done upon the first trial in the circuit court. The practice of this court, in will contests, where the formal execution has been proved, and the contestants have submitted no substantial evidence of incapacity on the part of, or undue influence over the testator, has been to remand the case with directions to enter a judgment establishing the will. Defoe v. Defoe, 144 Mo. 458; Cash v. Lust, 142 Mo. 644; McFadin v. Catron, 138 Mo. 197; Jackson v. Hardin, 83 Mo. 175. (3) Where the formal execution of the will is proved, and there is no evidence to overthrow the prima facie case thus made, the court should peremptorily instruct the jury to find in favor of the will. Jackson v. Hardin, 83 Mo. 175. (4) When it plainly appears from the opinion of the appellate court, that it was not intended to reopen the case for a new trial, it is immaterial what words are used in the mandate. Supervisors v. Kennecot, 94 U.S. 498; Hurck v. Erskine. 50 Mo. 116. (5) The construction placed by the circuit court upon the mandate of this court is also in accordance with the general practice of appellate courts. Defendants should not be unnecessarily annoyed and harassed by numerous trials. Hewitt v. Steele, 136 Mo. 327. (6) When the case was remanded to the lower court with directions, this was a special power of attorney to the trial court, and it had no authority to reopen the case, or do anything other than was necessary to carry said mandate into effect. The trial court entered the only judgment proper to be rendered, under the opinion and mandate of this court, and its action should be affirmed. Choteau v. Allen, 74 Mo. 56; Stump v. Hornback, 109 Mo. 272; Reed v. McDaniel, 131 Mo. 681.
-- In an opinion filed by us in this case on January 22, 1900, we held that, for failure of appellants to comply with the rules of this court by filing a complete abstract of the record, the appeal being by what is called the "short form," under the provisions of section 2253, Revised Statutes 1889, the judgment should be affirmed, which was accordingly done. Plaintiffs now present a motion for rehearing on that ruling, and upon reconsideration we are satisfied that we erred in affirming the judgment upon the ground stated in the opinion, and that the only course open to us in such circumstance was to dismiss the appeal or continue the case. We, therefore, sustain the motion and withdraw that opinion, and as plaintiffs insist that whatever imperfections there were in their abstract were cured by the abstract of defendants, we will dispose of the case upon that theory.
This is a statutory contest of the will of Mrs. E. A. Shootman, deceased, upon the grounds of want of mental capacity to make a will, and undue influence in its execution by some of the beneficiaries named in the will. The case was before this court on a former appeal by defendants, and will be found reported in 144 Mo. 354, 45 S.W. 1077. It was then held that there was no substantial evidence tending to support either of said grounds, and that the trial court should have sustained a demurrer to plaintiffs' evidence, and that it committed error in failing to do so.
The court saying, "And for these errors the judgment is reversed and the cause remanded with directions to the circuit court to proceed in accordance with the views herein expressed."
After the mandate from this court was received by the clerk of the circuit court of the county from which the appeal was taken, and the case again came up to be disposed of, the defendants asked the court to enter up judgment establishing the will in contest to be the last will and testament of the testatrix, Mrs. E. A. Shootman, deceased, in accordance with the opinion and mandate of the Supreme Court, and over the objection and exception of plaintiffs, judgment was rendered in accordance with such request.
Therefore and in due time, plaintiffs filed their motion to set aside the...
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